Justice Department blocked from revoking decades-old green cards

PHILADELPHIA (CN) — A Third Circuit panel struck down the Justice Department’s push for authority to reconsider any green card holders’ residency status at any time Tuesday, repeatedly rebuking the government’s position as an executive overreach incompatible with due process.

The ruling centers around Mohammad Qatanani, a Palestinian-born man and longtime New Jersey imam who has spent nearly two decades in a legal battle for permanent residency amid U.S. and Israeli accusations of Hamas ties.

In 2008, an immigration judge found no admissible evidence that Qatanani had supported or joined the Palestinian militant group and granted him permanent U.S. residency. Though the government appealed, the immigration judge again ruled in favor of Qatanani in April 2020.

Nearly one year later though, the Board of Immigration Appeals initiated self-certification of the ruling, ultimately rescinding Qatanani’s green card.

Following Qatanani’s appeal of the board’s ruling, the Justice Department posited a stark increase of authority. Without Board of Immigration Appeals certification, it argued, no permanent residency status is ever final — opening up nearly all 12.8 million green cards to reconsideration.

Writing in the three-judge appeals panel’s opinion, U.S. Circuit Judge Arianna Freeman emphasized the “carte blanche” powers such a legal interpretation would grant the executive branch, allowing it to circumvent congressionally-mandated procedures.

“The implications of this argument are extraordinary,” the Joe Biden appointee wrote. “According to this view, by merely invoking two regulations, the BIA could render a final adjudication to [permanent residency] status non-final, without the procedural protections that Congress provided. And it could do so at any time.”

During oral arguments, the Justice Department doubled down on its position, extending its assertion to include the right to revoke citizenship status for naturalized citizens at any time. Because an agency regulation grants the board “unlimited time” to initiate certification of immigration judge rulings, the department claimed there was no requirement to follow Congress’ mandated time limit.

When questioned why there would ever be a need to invoke Congress’ time limit under this legal reading, the Justice Department acknowledged “an inherent tension” created from the government’s position.

“This is no mere ‘tension,’” Freeman wrote in the panel’s opinion. “The government’s position is antithetical to ‘the basic concept of separation of powers … that flow[s] from the scheme of a tripartite government.’ We therefore reject it.”

As such, the panel — consisting also of U.S. Circuit Judges Cheryl Ann Krause and Paul B. Matey, a Barack Obama and Donald Trump appointee, respectively — ruled the immigration judge’s April 2020 order granting Qatanani permanent residency became final 30 days later, when no timely appeal was filed.

The panel also denounced the Justice Department’s purported authority on grounds of both finality and due process.

For one, the panel ruled, administrative proceedings cannot rely on a speculative event to determine an order’s finality.

By claiming that an immigration case remains indefinitely open unless the board chooses to self-certify — an event that may never happen — the Justice Department’s position could not stand, Freeman wrote.

“Instead, those orders become final by operation of law at a predictable and discernable time: when the 30-day period to appeal such an order lapses and no appeal has been taken,” she said.

By attempting to remove a clear and predictable finality to the process of obtaining permanent residency, the Justice Department also violated Qatanani’s due process rights, the panel ruled.

“Permitting the BIA to rescind his adjustment to [permanent resident] status outside of the process Congress provided would violate those due process protections,” Freeman wrote. “It would eliminate the security that attends [permanent resident] status, undermining Qatanani’s ability to rely on his status to make decisions about home, family, community and career in this country.”

Representatives for Mohammad Qatanani and the Department of Justice did not immediately respond to requests for comment.

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